At the Supreme Court’s conference yesterday, a double one, actions of note included:

  • Forum selection: The court agreed to hear Gerro v. BlockFi Lending LLC, but only part of the case. In a lawsuit involving a loan collateralized by bitcoin, the court limited the issue to be briefed and argued to: “Did the Court of Appeal correctly hold that this action must remain in California despite the contractual forum selection clause?” Uncommonly for a civil case, review comes after an unpublished opinion, this one by the Second District, Division One, Court of Appeal. Also atypical for a review grant, the court was not unanimous — Justice Goodwin Liu did not vote for review. Division One ruled against enforcing a Delaware forum selection clause because the clause included a predispute jury waiver and because “California has a fundamental policy against such a waiver,” a policy that “could be violated if [the case] were heard in Delaware.” In July, the Supreme Court granted-and-transferred a different forum selection clause case from another Court of Appeal. (See here.) [December 1 update: One of the defendants filed a notice of bankruptcy stay and the court entered an order that the “notice operates as an automatic stay in this proceeding.” Meanwhile, the plaintiff filed a motion to dismiss review.]
  • Unusual disposition and weird partial publication order. The court granted review in In re Z.O. and sent the case back to the Fourth District, Division Three, “with directions to vacate its decision, allow further briefing, and reconsider the appropriate disposition in light of [three Court of Appeal opinions].” The Division Three partially published opinion had “conditionally affirmed” a dependency court order, remanded the matter for further action on issues concerning a guardian ad litem appointment and the Indian Child Welfare Act, and said, “should the trial court make express findings that a GAL was required at the time of the appointment, and should it find ICWA inapplicable, our affirmance resolves the case.” That doesn’t seem to fit any of the possible dispositions under Code of Civil Procedure sections 43 and 906. Vacating the decision depublishes the opinion (see here), which is just as well, because the appellate court’s partial publication order is weird. Usually, such orders identify only entire sections of an opinion that are to be unpublished, but the Z.O. order picks out paragraphs, sentences within paragraphs, and even words and phrases within sentences for nonpublication.
  • Covid statute of limitations. The court denied review in Committee for Sound Water and Land Development v. City of Seaside, where the Sixth District published opinion held causes of action under the California Environmental Quality Act were time barred. The appellate court construed Judicial Council actions adopting an emergency rule at the beginning of the Covid pandemic that tolled civil statutes of limitations and later cutting back on that tolling for short limitations periods, like the ones for CEQA lawsuits. The Sixth District rejected arguments that, as it summarized, “the shortened limitations period provided by [the tolling reduction] was unreasonable and arbitrary, constitutes an improper ex post facto law that cut off the [plaintiff’s] access to courts, and the Judicial Council’s choice of August 3, 2020, as the end of the tolling period was improperly influenced by lobbyists.” Chief Justice Tani Cantil-Sakauye and Justice Carol Corrigan were recused, most probably because they are, respectively, the chair and a member of the Judicial Council, which issued and amended the emergency rule.
  • Covid required remote appearance. The court denied review in People v. Whitmore. The Fourth District, Division Three, published opinion refused to reverse a conviction based on a defendant’s claim that his right to be present in court was violated by requiring him — because of a jail lockdown due to a Covid outbreak — to appear by videoconference at a December 2020 hearing on posttrial motions and sentencing. Noting that “the trial court had to balance Whitmore’s right to be physically present against the need to minimize the danger created by the spread of a contagious disease,” Division Three concluded that the remote appearance “during a historic public health crisis did not thwart the fairness of the proceeding.” The court did find the forced virtual appearance did violate statutory law, but said the violation was harmless. “The fact of the matter, as confirmed by reliable medical and scientific data,” the court stated without citation, “is that the COVID-19 pandemic prevented trial courts throughout California from holding in-person hearings safely in December 2020.” The court denied review in a similar case in July. (See write-up of People v. Churchill here.) Chief Justice Tani Cantil-Sakauye and Justice Carol Corrigan were recused, most probably because they are, respectively, the chair and a member of the Judicial Council, which adopted an emergency rule allowing for remote criminal proceedings if the defendant consents, which Whitmore did not.
  • Criminal case grant-and-holds. There were eight criminal case grant-and-holds:  one more waiting for the finality of the decision in People v. Tran, which filed late last month; two more waiting for People v. Lynch (see here); one more waiting for both Tran and Lynch; two more waiting for People v. Curiel (see here); one more holding for In re Vaquera (see here), which has been fully briefed for over two years; and one more holding for People v. Ramirez (see here), which was argued last week.
  • Criminal case grant-and-transfer: The court granted review in one matter and sent the case back to the Court of Appeal for reconsideration in light of last month’s decision in People v. Strong (2022) 13 Cal.5th 698. The remittitur issued just yesterday in Strong. In the coming weeks, the court will likely be getting rid of a lot of Strong grant-and-holds.
  • New-legislation remand: The court granted a pro per’s petition for review in In re Wade and transferred the case back to the Third District for issuance of an “order to show cause why petitioner is not entitled to a new sentencing hearing in light of Senate Bill No. 567.” (Link added.) The appellate court had summarily denied the habeas corpus petition without prejudice, saying, “petitioner retains a potential remedy by direct appeal, and habeas corpus is not a substitute for appeal.”